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MPIL RESEARCH PAPER SERIES | No. 2021-27

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INFECTIOUS DISEASES
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Pedro Villarreal
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MPIL RESEARCH PAPER SERIES
No. 2021-27

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INFECTIOUS DISEASES

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AUTHOR
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Pedro Villarreal

EDITORIAL DIRECTORS
Armin von Bogdandy, Anne Peters

EDITOR-IN-CHIEF
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Angelo Jr. Golia

TECHNICAL ASSISTANCE
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Verena Schaller-Soltau
Angelika Schmidt
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 ISSN 2702-9360

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All MPIL Research Papers are available on the MPIL website at www.mpil.de/de/
pub/publikationen/mpil-research-paper-series.cfm and on the SSRN at https://
papers.ssrn.com/sol3/JELJOUR_Results.cfm?form_name=journalbrowse&journal_
id=2765113 “

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Copyright remains with the author

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Suggested citation

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Villarreal, Pedro, Infectious Diseases (December 12, 2021). Max Planck
Institute for Comparative Public Law & International Law (MPIL) Research
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Paper No. 2021-27, In: Elgar Encyclopedia of Human Rights, edited by
Christina Binder, Manfred Nowak, Jane A. Hofbauer and Philipp Janig –
2022 (forthcoming).
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Available at SSRN:
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3983435
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This preprint research paper has not been peer reviewed.
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 ABSTRACT

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The current entry discusses several linkages between infectious or communicable diseases and human

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rights issues. First, the entry puts forward a brief historical note on how international law in the field
of the cross-border spread of disease emerged in parallel to international human rights law. Far from
being a recent phenomenon, infectious disease outbreaks have long raised questions of which legal
measures by national authorities are adequate to respond to these threats. Although the global burden of
disease posed by infectious diseases receded in the course of the 20th Century, events such as the HIV/

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AIDS pandemic and, currently, the COVID-19 pandemic, gave way to questions on the extent of states´
health-related human rights obligations. Second, the entry examines the interpretation of states´ con-
crete obligations by international and regional quasi-judicial and judicial human rights bodies. Striking

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the right balance between protecting persons from the spread of diseases, while at the same time safe-
guarding individual rights and freedoms, has been a staple of debates in legal doctrine and practice. The
entry shows how infectious disease-related events lie beyond the divide between civil and political rights,
on the one hand, and economic, social and cultural rights, on the other hand. The analysis concludes

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by pondering whether the COVID-19 pandemic will be a human rights crucible, posing a series of open
questions for further research.
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KEYWORDS:

Infectious disease control, international human rights law, COVID-19, regional human rights law, human
rights derogations
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 INFECTIOUS DISEASES

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In: Elgar Encyclopedia of Human Rights, edited by Christina Binder, Manfred Nowak, Jane

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A. Hofbauer and Philipp Janig – 2022 (forthcoming)

I. Introduction: A brief historical note on infectious disease control

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[1] Until the 20th century, outbreaks of infectious diseases/communicable diseases were a
predominant scourge of human health. The deadliest of these events, the 1918-1919 H1N1
influenza pandemic (also known as ‘Spanish flu’) is thought to have killed approximately 50
million people – more than the entire casualties of the First World War (1914-1918) (Johnson

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and Mueller [2002] at 105-115).
[2] By the time of the emergence of international human rights law in the middle of the 20th
century, a ‘global epidemiologic transition’ was underway (Omran [1971] at 510). Thanks to
the proliferation of medical technologies for facing the threat posed by communicable
diseases, particularly vaccines, antiviral and antibiotic medicines, the list of preventable and
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treatable infectious diseases gradually increased. Therefore, infectious or communicable
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diseases gradually receded as the main cause of death in developed countries (Battin et al
[2009] at 64). This evolution at the global level did not occur uniformly, since low-income
countries had a more protracted transition (Sanders et al [2008] at 36-38).
[3] The HIV/AIDS pandemic was a global turning point. From the 1980s onwards, the impact
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of the disease led to concerns of what measures needed to be adopted for facing it, as well
as states’ obligations concerning the protection of their inhabitants’ health against such
threats. The spread of the HIV virus had a devastating, albeit differentiated impact across
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the entire globe. The degree of economic development of particular countries was correlated
to its damaging consequences. A global divide emerged in terms of the speed with which
countries halted its spread,or mitigated its consequences for health. It became a
longstanding major cause of morbidity and death, especially in the African region (Condon
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and Sinha [2008]). Despite the increasing availability of effective antiretroviral medicines in
developed economies, the slower pace with which African countries procured them led to a
delay in the region’s effective response to the pandemic. The HIV/AIDS crisis brought
debates on the → right to health to the front and centre (Mann et al [1991] at 6-23).
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[4] The COVID-19 pandemic is the biggest challenge posed to mankind by an infectious
disease since the 1918-1919 H1N1 influenza pandemic. These types of events have a
whole-of-society impact. But there are no comparable precedents available under the more
contemporaneous international human rights law and jurisprudence. With this in mind, this
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entry gives an overview of several human rights issues arising from the specific threat posed
by infectious diseases. A brief historical note is included in order to grasp the gradual
development of the specialized international law in the matter, the International Health
Regulations (IHR). Section II deals with some of the concrete links between infectious
disease control and international human rights law. Section III offers a brief conclusion.
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 II. Human rights and infectious disease control
1. International law and infectious diseases: Lex specialis

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[5] One of, if not the central tool in the 19th century for facing the spread of communicable
diseases was quarantines. Historically, the latter consisted of the detainment of merchant

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ships arriving from ‘risk areas’ for up to forty days – from the Italian quaranta giorni (Tognotti
[2013] at 254; Rothstein [2015] at 229-230). But the criteria for such measures, including
their duration, varied dramatically from country to country. Uncertainty had a major negative
impact on trade, due to the de facto destruction of perishable goods resulting from extended
detainment, and the underlying uncertainty of when they would be imposed, if at all (Fidler

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[2005] at 329; Negri [2018] at 269-272).
[6] With the purpose of addressing this situation of uncertainty, the first international sanitary
conference addressing the threat posed by the cross-border spread of disease took place in
1851. Delegates from different European countries gathered to discuss the possibility of
developing a treaty for harmonizing quarantine procedures (Mbengue [2012] para 3).

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However, one of the core challenges for achieving such a goal was the lack of scientific
consensus on the epidemiological nature of communicable diseases (Howard-Jones [1975]
at 12-16).
[7] The absence a unified view on the best medical tools for facing a certain type of disease
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largely contributed to a lack of political agreement amongst the delegates (de Pooter [2015]
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at 33-35). Consequently, the first legally binding international sanitary convention would only
see the light of day in 1893, as a result of the seventh of these conferences (Fidler [2005] at
330). It mostly dealt with harmonizing quarantine requirements.
[8] Throughout the sanitary conventions of the 19th and early 20th centuries, considerations
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on the impact on the individual freedoms of persons were wholly absent. There was a
burgeoning push for the codification of → international humanitarian law, i.e. the protection
of persons in situations of war (ius in belli), as well as the development of → customary
international law prohibiting the enslavement of persons (Smith [2019] at 15-19) (→ slavery,
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servitude and forced labour, prohibition of). But back then, there was still no internationally
codified obligation to respect civil liberties in general.
[9] The foundation of the World Health Organization (WHO) in 1948 was a landmark event
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for international law and infectious disease control. The fight against the cross-border spread
of diseases stands at the core of the WHO’s mandate. Indeed, Article 21(a) of the
Constitution of the WHO provided the organization with atypical powers to issue binding
regulations in the field of ‘sanitary and quarantine requirements and other procedures
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designed to prevent the international spread of disease’. These powers represented the
legal basis for the existing core instrument for the fight against cross-border infectious
diseases, the International Health Regulations (IHR) of 2005. It is the successor of the
International Sanitary Regulations of 1951, and the IHR of 1969. Following the spirit of the
first international sanitary conferences, Article 2 IHR foresees the protection against
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infectious diseases through public health measures that do not restrict the movement of
goods and persons across borders more than necessary. Notably, Article 3 IHR mandates
the respect of human rights when implementing all of the instrument’s provisions, though it
does not specify which ones.
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[10] Of particular importance for human rights are provision related to the movement of
persons under the IHR. States’ obligations include respecting the rights of individuals (Art
3(1) IHR) with an emphasis on, but not limited to, those of international travellers. These are

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 understood as persons not seeking to establish temporary or permanent residence in a
country (Art 40(1) IHR). For instance, although Article 31(2)(c) IHR allows states to impose

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mandatory quarantines to travellers entering their territories, Article 32 IHR mandates the
respect of their human rights when doing so, including the provision of minimum conditions.

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In a similar vein, under Article 40 IHR, non-resident travellers have a right not to be charged
for the costs of accommodation during quarantines or isolations.
[11] Two major limitations of the IHR in terms of human rights stand out. First, although the
IHR are applicable regarding national-level public health measures, the WHO may not create
binding obligations for states for how national authorities respond towards their own

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populations. Therefore, public health measures not affecting international travellers are
mostly left to the remit of national authorities, although they are still obliged to notify the
WHO of any such measures (Art 6 IHR). The WHO may nevertheless issue technical
recommendations under Articles 15 and 17 of the IHR. These may include whether to adopt
measures that restrict civil liberties, such as individual quarantines and isolation, to face a

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specific disease. These are addressed in the following section.
[12] A second limitation in terms of human rights is that the IHR do not provide direct
standing for individuals to challenge their breach. Article 56 IHR only provides for inter-state
dispute settlement, namely at the Permanent Court of Arbitration. This effectively means

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that, whenever the rights of travellers are infringed, it is up to their home states to invoke a
breach of the IHR’s provisions (→ diplomatic protection). If authorities from the home state
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do not to wish to pursue the dispute further, there is no available remedy for individuals
directly under the IHR. Given the usually heavy costs associated with this modality of
international judicial dispute settlement, a breach of obligations considered to have a ‘minor’
impact on travellers is highly unlikely to lead to litigation (see an example thereof in Habibi et
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al [2020] at 64). In sum, the IHR’s human rights dimension has yet to be fully fleshed out
(Zidar [2015] at 517).
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2. Infectious diseases and human rights obligations to respect

[13] At the centre of states’ obligations towards individuals in communicable diseases lies
the right to health, which is present in various modalities throughout a series of legally
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binding international instruments (Gostin [2014] at 247-257). The first of these to enshrine a
definition of health, as well as states’ commitment to strive towards its attainment, is the
Constitution of the WHO. Its preamble defines health as ‘a state of complete physical,
mental and social well-being and not merely the absence of disease or infirmity’.
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Furthermore, it confirms that ‘the enjoyment of the highest attainable standard of health is
one of the fundamental rights of every human being’. The broad formulation makes it difficult
to pinpoint its reach and scope, which is why there are arguments in favour of a narrower
interpretation focused on more tangible components, for example the provision of healthcare
services (Buchanan and Hessler [2002]; Tobin [2011] at 67).
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[14] The most concrete formulation of the right to health is enshrined in Article 12 of the →
International Covenant on Economic, Social and Cultural Rights (ICESCR). Of direct
relevance is Article 12(2)(c), which affirms states parties’ obligation to take steps for ‘[t]he
prevention, treatment and control of epidemic […] diseases’. It is thereby understood that it
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refers to diseases which have an infectious or communicable nature.

[15] The open wording of Article 12(2)(c) has been further interpreted by the Committee on
Economic, Social and Cultural Rights (CESCR), which offers an authoritative view on how

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 states’ obligations in the ICESCR should be construed. In its General Comment No 14
(2000) on the right to the highest attainable standard of health, the Committee considered

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that states ought to ‘respect, protect and fulfil’ individuals’ rights in this regard (para 33).
Furthermore, the four elements of availability, accessibility, acceptability and quality (the

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‘AAAQ’) are a core standard for rights-based approaches to healthcare (Toebes [2016] at
310-312; Riedel [2020] at 112).
[16] In terms of obligations to respect, the CESCR has interpreted that states are obliged to
generally refrain from mandating coercive medical treatments, unless it is inter alia for the
protection and control of communicable diseases (CESCR, GC No 14: Health [2000] para

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34). As the latter refers to an obligation to ‘protect and fulfil’ public health, this dichotomy
displays the tensions that may emerge even within the right to health itself.
[17] The link between infectious diseases and human rights obligations to respect not only
relate to the right to health, but rather also to civil and political rights. As explained in the
following section, states’ fulfilment of human rights obligations to protect may require

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interfering with the enjoyment of individual liberties and freedoms through their restriction
(De Schutter [2019] at 344).

3. Infectious diseases and obligations to protect and fulfil

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[18] In terms of obligations to protect and fulfil, the right to life and the right to health are
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closely intertwined. At the factual level, serious affectations to health can evidently lead to a
loss of life. Other authors argue that this close relationship is a demonstration of the
indivisibility of human rights altogether (Smith [2019] at 240-241).
[19] The gradual development of states’ obligations to protect under the international right to
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life, enshrined in Article 6 → International Covenant on Civil and Political Rights (ICCPR),
have encompassed the need to take adequate measures addressing specific threats against
individuals (Petersen [2019] para 2). International quasi-judicial human rights bodies and
regional courts interpret to what extent national authorities have taken sufficient measures
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towards that purpose. Thus, as established by the Human Rights Committee (HRCttee) in its
General Comment No 36 (2019) on Article 6 ICCPR: individual’s lack of access to
emergency healthcare services, or access to inadequate ones, may amount to a violation of
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the right to life (para 26).

[20] The international right to health enshrines obligations to fulfil, including to adopt
measures against threats to health (CESCR, GC No 14: Health [2000] paras 33, 36). Thus,
these obligations to fulfil overlap in a relevant manner with the obligations to protect under
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the right to life. Additionally, considering the more expansive definition of health, these
obligations are applicable not only in instances where individual’s lives as such are at risk.
Rather, in line with the CESCR’s interpretation mentioned above, the right to health requires
taking steps in order to ensure the enjoyment of ‘the highest attainable standard of physical
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and mental health’ (Ibid., para 49).

[21] Protecting the health and life of individuals may require adopting measures restricting
civil liberties (Tognotti [2013] at 258-259). When an acute infectious disease, for which there
is no effective and sufficiently available pharmaceutical remedy, spreads across a
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community, authorities may be required to implement urgent public health measures to

mitigate such spread (Bennoune [2020] at 669). The means of transmission is determinant
for devising adequate public health strategies. In the case of diseases transmitted from
person to person, a key goal is to reduce their physical contact to the minimum possible. It is

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 worth noting that infectious diseases may be transmitted through other agents or vectors,
such as mosquitoes in the case of the Zika virus, or through food- and waterborne bacteria

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like E. Coli and cholera, respectively. In the latter two examples, improvements in the overall
conditions of sanitation or standards regarding product safety will be more effective

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approaches, and both of them have been recognized as ‘core obligations’ under the right to
health (CESCR, GC No 14: Health [2000] paras 43-44).
[22] A number of measures are available for reducing physical contact between persons
through so-called ‘social distancing’. They may be adopted either for individuals, groups or
even entire communities. At the level of communities, the number of persons that may

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gather in public spaces can be limited, or a mandatory physical distance in common spaces
can be established (Wilder-Smith and Freedman [2020]). In the case of individuals,
isolations and quarantines are implemented, respectively, to persons who either have a
medical diagnosis of infection, or merely a suspicion of it (see definitions in Art 1 IHR).
Restrictions on movement may also be implemented at the community-level, leading to

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either cordons sanitaires – where entire regions are secluded preventing entry and exit of
persons – (see also Art 17(2) IHR) or community-wide quarantines, where the high level of
transmission outdoors means all persons must remain in their homes.
[23] The key element in these measures for the purpose of human rights-based

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assessments is whether they are compulsory. If so, they effectively lead to the imposition of
duties on individuals, coupled with the threat of sanctions. Persons are obliged to change
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their patterns of behaviour, leading to a considerable reduction in their liberty of action, thus
touching upon states’ obligations to respect.
[24] Accordingly, in the assessments of their conformity with human rights, quarantines are
usually more challenging from a legal perspective, because there is no medical diagnosis of
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infection but rather only a suspicion. It is difficult to determine what is the acceptable
threshold for such suspicion in order to justify the restriction. Thus, national authorities have
leeway in defining the individual circumstances that will warrant mandatory quarantines.
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Examples range from imposing them to persons who have been directly exposed to
confirmed infected; to those who exhibit symptoms but without a laboratory-based diagnosis;
or to those who have merely been present in zones of high transmission. Different
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hypotheses may be addressed through sliding scales of thresholds justifying suspicion of

infection, i.e. from higher to lower.
[25] In extreme circumstances, public health measures restricting civil liberties may be
adopted without the individual assessments usually required when imposing restrictions.
National authorities must then decide whether to derogate from human rights obligations, a
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possibility envisaged in Article 4 ICCPR (→ emergency, state of). There is no precise

threshold for when an infectious disease ‘threatens the life of the nation’. Notably, both the
→ freedom of movement (Art 12 ICCPR) and the → freedom of assembly (Art 21 ICCPR)
may be subjected to derogation under Article 4(2) ICCPR. At the same time, General
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Comment No 29 (2001) to Article 4 of the ICCPR provides certain grounds for restricting
these freedoms, inter alia in the context of ‘natural catastrophes’, without having to declare
their derogation (para 5). The formulation sheds light on the unclear dividing line between
restricting the rights of free movement and assembly, on one hand, and suspending or
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derogating them, on the other hand. Existing interpretive criteria allow for invoking public
health as a grounds for limiting those rights (para 26).
[26] Within the obligations to fulfil under the right to health, the question of access to
medicines in the context of infectious diseases is a core concern. The life-or-death relevance

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 of the dimension became strikingly clear during the HIV/AIDS pandemic mentioned above.
Its disproportionate impact in the African region was also the result of a lack of access to

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effective antiretroviral medicines, which were increasingly available in higher-income
countries but had a prohibitive cost for underfinanced healthcare systems (’t Hoen [2002] at

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28; Abbott and Reichman [2007] at 927-928; Novogrodsky [2009] at 59-61). The question
became a catalyst for rights activism, leading to multiple cases in national and regional
human rights judicial and quasi-judicial bodies. It also brought attention towards the role of
→ intellectual property rights, as internationally enshrined in the Agreement on Trade
Related Aspects of Intellectual Property (TRIPS), in shaping access to medicines (Moon and

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Hein [2013] at 188-190; Sell [2017] at 319). States’ possibilities of fulfilling their obligations
under the ICESCR are directly dependent on factors determined elsewhere, particularly
regarding the pricing of medicines undertaken by transnational pharmaceutical companies
(Wirtz et al [2017] at 421-430). This is particularly challenging for countries where there is a
limited manufacturing capacity of pharmaceutical products, coupled with a lower purchasing

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power preventing them from affording higher prices of medicines.
[27] Among the flexibilities provided in TRIPS, Article 31 allow states parties to issue
compulsory licenses. These allow national authorities to, under certain circumstances,
authorize third parties to produce patented goods even without the consent of corresponding
patentees. In principle, this offers a legal tool for overcoming barriers posed by a lack of
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agreement on issues such as pricing. But one major problem was that the initial formulation
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of Article 31(f) TRIPS, when it entered into force in 1995, allowed for compulsory licensing
for supplying the domestic market ‘predominantly’. Countries with scarce investments in their
national pharmaceutical sectors were unable to effectively make use of this mechanism, as
they are mostly dependent on pharmaceutical manufacturers in other countries who are able
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and willing to supply them the necessary medicines. In the case of transnational
pharmaceutical companies, they still held most of the bargaining power vis-à-vis lower-
income countries in need.
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[28] These tensions between the TRIPS Agreement, on the one hand, and rights-based
public health goals, on the other hand, has led to the ‘Doha Declaration’, issued in 2001 at
the Ministerial Conference of the World Trade Organization in Doha. Epidemics caused by
infectious diseases in ‘developing and least-developed countries’ were one of the main
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stated reasons for its adoption (para 1). The Doha Declaration recognized that states parties
to the TRIPS Agreement were not precluded from adopting certain measures to protect
public health, such as issuing compulsory licensing for patent-protected medicines (paras 4,
5(b)). The Doha Declaration later resulted in the inclusion of Article 31bis to TRIPS, which
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took effect in 2017. Recognizing obstacles for access to medicines posed by the original
formulation, TRIPS Article 31bis now allows for using compulsory licenses for the purposes
of exports to countries in need.
[29] From a critical perspective, the right to health as developed by the CESCR in General
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Comment 14 does not devote much attention to the subject of infectious or communicable
diseases. Certainly, the Committee could not have been expected to take into consideration
all possible past, present and future variables on how infectious diseases should be tackled.
It would have been a daunting task, given the wide diversity of diseases falling within this
category, their distinctive epidemiological features, as well as the impossibility to foresee
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pathogens so far unknown to mankind. Nevertheless, before the COVID-19 pandemic (see
below paras 37-41), there was a prevailing lack of clarity on how exactly states should
comply with human rights obligations in settings where, for instance, there is an acute

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 disease for which no available medicine exists. The CESCR issued a statement on COVID-
19 on 17 April 2020, when the pandemic was ravaging the world, addressing multiple

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dimensions of states’ obligations to protect persons against the disease. Notably, it affirmed
the need to adopt ‘urgent measures’ (para 10) that are ‘reasonable and proportionate’ (para

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11).
[30] Moreover, the ‘soft’ formulation of states’ extraterritorial obligations under the right to
health in General Comment 14 leaves multiple uncertainties (→ extraterritorial application of
human rights). It is clear that states’ obligations are fully applicable towards individuals on
their own territory. But human rights doctrine has distinguished them from obligations owed

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towards individuals that are present in the territory of other countries (Principle 31 of the
2011 Maastricht Principles; De Schutter et al [2012] at 1151). Consequently, there is no
clear indication of how to fulfil such obligations in scenarios of global scarcity of a medical
resource, such as a safe and effective vaccine in the middle of an emergency. When facing
the dilemma of having to prioritize the allocation of a globally scarce resources, states must

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choose how much of it will belong to their own inhabitants, at the expense of other countries
with an equally urgent need. The CESCR recognized the conundrum through another
statement of 15 December 2020, by emphasizing that states should contribute towards the
enjoyment of all human rights globally, even despite initially prioritizing their own citizens
(CESCR, Statement on Access to COVID-19 Vaccines [2020] paras 10-11).
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4. Infectious Diseases in Regional Human Rights Jurisprudence
[31] In the European human rights system, the strict separation between civil and political
rights, on the one hand, and economic, social and cultural rights, on the other hand, has led
to different standards of → justiciability, i.e. the possibility to submit an application to the →
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European Court of Human Rights (ECtHR) (→ generations of human rights). In the case of
human rights obligations to protect, Article 5(1)(e) European Convention on Human Rights
(ECHR) foresees infectious diseases as possible grounds for detention, i.e. a restriction of
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the right to personal liberty (→ liberty of person, right to). Courts may interpret to what extent
measures of detention by the state are justified in concrete cases. In Enhorn v Sweden
(2005), the ECtHR dealt with this hypothesis, since the Swedish government had resorted to
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the mandatory isolation of a person infected with HIV/AIDS due to considering his behaviour
risky for others.
[32] The catalogue of human rights obligations under the right to health that may be
justiciable at the ECtHR is available only through an ‘indirect approach’. The right itself is not
enshrined in the ECHR, but rather in Article 11 of the → European Social Charter. As the
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latter does not fall within the ECtHR’s scope of jurisdiction, the right to health is not
considered to be directly justiciable at the ECtHR (see an overview of the pertinent case law
in ECtHR, Vasileva v Bulgaria [2016] para 63). Issues regarding the right to health may
nevertheless be the subject of collective complaints at a Committee of Independent Experts,
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within the → European Committee of Social Rights (Úbeda de Torres [2020] at 43-55) with
regard to states parties of the European Social Charter that have ratified its corresponding
Additional Protocol providing for a system of collective complaints (as of November 2021, 14
state parties).
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[33] As noted before, the ECtHR has addressed human rights problems related to health
through the ‘indirect approach’, i.e. as an extension of justiciable civil and political rights, in
particular the → right to life (Art 2 ECHR; see ECtHR, Öneryildiz v Turkey [2004] para 71;

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 ECtHR, Vasileva v Bulgaria [2016] paras 63-69), the → right to respect for private and family
life (Art 8 ECHR; see ECtHR, López Ostra v Spain [1994] para 58). More recently, one

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application at the ECtHR challenged the omission of national authorities in France to adopt
adequate measures against the spread of COVID-19. The Court dismissed the application

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due to a lack of legal standing, as the applicant did not demonstrate personal affectation
under Article 34 ECHR. But the Court also confirmed the existence of states’ obligations to
protect health, including the adoption of measures necessary for preventing diseases,
understood as a part of the right to life (ECtHR, Le Mailloux v France [2020] para 9). This
begs the question of which exact measures are necessary for fulfilling such obligation – a

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matter falling within the purview of national health authorities. Similarly, another case at the
ECtHR dealt with compulsory vaccination against measles, an infectious disease, through
the Czech government’s mandatory denial of enrolment in preschool to non-vaccinated
children. In summarized terms, the ruling concluded that such a restriction on individuals’
right to respect for their private lives under Article 8 ECHR is proportionate, falling within the

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margin of appreciation, and can be considered to be ‘necessary in a democratic society’ for
fostering the protection of public health (ECtHR, Vavřička and others v The Czech Republic
[2021], paras 196, 310). Lastly, a closely related case during the COVID-19 pandemic dealt
with stay-at-home orders – colloquially referred to as ‘lockdowns’ – in Romania. Here, the
Court determined that the circumstances upon which the government imposed those
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measures were not considered to be the equivalent of house arrest for the purposes of a
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deprivation of liberty under Article 5(1) ECHR (ECtHR, Terheş v Romania [2021] para 45).
[34] By contrast, both Article 26 of the → American Convention of Human Rights (ACHR)
and several provisions of the → African Charter on Human and Peoples’ Rights (Banjul
Charter) directly incorporate ESC rights in their provisions, without there being any caveats
p
as to the jurisdiction of the corresponding regional courts to adjudicate on the subject (Art
62(3) ACHR). As a consequence, in contrast to the European system, states’ human rights
obligations to fulfil in the field of human health have been affirmed in both the American and
African regions.
ot

[35] In its case law, the → Inter-American Court of Human Rights (IACtHR) had mostly dealt
with issues related to access to medicines and healthcare services in correlation to the right
to life (Art 4 ACHR; see IACtHR, Ximenes Lopes v Brazil [2006] para 99) and physical
tn

integrity (Art 5(1) ACHR; see IACtHR, Albán Cornejo et al v Ecuador [2007] para 109 and
operative para 2). The IACtHR’s case law on infectious diseases was focused on states’
obligations to protect life vis-à-vis persons infected with HIV/AIDS. Obligations to respect
have mostly consisted of ensuring a non-discriminatory treatment of persons infected with
rin

the virus (Art 1(1) ACHR, see IACtHR, González Llluy y otros v Ecuador [2015] paras 204-
205, 228-229, 253-259). Moreover, the IACtHR has considered that states must guarantee
access to antiretroviral medicines as part of their human rights obligations (IACtHR, Caso
Duque v Colombia [2016] para 174; IACtHR, Caso Cuscul Pivaral y otros v Guatemala
ep

[2018] paras 108-114). In the ruling in Poblete Vilches v Chile (2018), the IACtHR shifted its
interpretive criteria by considering that the right to health, as a part of ESC rights under
Article 26 ACHR, is directly justiciable (para 143; see also Villarreal [2018]). While that case
did not address an infectious disease, its rationale was later applied in Cuscul Pivaral v
Guatemala (2018), which concerned access to healthcare services and effective medicines
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for HIV/AIDS patients (paras 225-226). The → Inter-American Commission of Human Rights
has issued several resolutions underscoring states’ obligations to respect and to fulfil human

8 MPIL Research Paper Series No. 2021-27 ISSN 2702-9360

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 rights during the pandemic, regarding both COVID-19 patients and the general population
(see IACHR, Res 1/2020 [2020]; IACHR, Res 4/2020 [2020]).

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[36] Lastly, in the African system of human rights, to date the → African Court on Human
and Peoples’ Rights has yet to issue a ruling dealing with the human rights dimension of

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infectious diseases. Nevertheless, the → African Commission on Human and Peoples’
Rights (ACHPR) has addressed the subject. Enshrined in Articles 16 of the African Charter
on Human and Peoples’ Rights, as well as in Articles 14 of the → Maputo Protocol, the right
to health in the context of HIV/AIDS infected persons has been interpreted by the African
Commission in two General Comments (ACHPR, GC No 1: Art 14(1)(d) and (e) Maputo

vie
Protocol [2003]; ACHPR, GC No 2: Art 14.1 (a), (b), (c) and (f) and Article 14.2 (a) and (c)
Maputo Protocol [2003]). Moreover, the Commission has issued resolutions where both
obligations to fulfil (regarding access to medicines, see ACHPR, Res 141 [2008]) and to
respect (non-discrimination, see ACHPR, Res 260 [2013]) towards HIV-infected persons
under Article 16 of the African Charter were stressed. The African Commission issued a

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detailed resolution focusing on obligations under the rights to health and life during the
COVID-19 pandemic which included, similarly to its Inter-American counterpart, measures to
guarantee access to healthcare services for persons infected with COVID-19 and other
patients (ACHPR, Res 449 [2020] para 1)

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5. The COVID-19 Pandemic as a Human Rights Crucible
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[37] Before the emergence of COVID-19, the international bill of rights and regional systems
had never been subjected to a similar global challenge posed by a communicable disease.
The most devastating pandemic so far in history, the 1918-1919 H1N1 influenza pandemic,
took place decades before the development of contemporaneous international human rights
p

law. Its response was also framed with a very different set of public health tools available,
namely in the complete absence of effective pharmaceutical remedies.
[38] As witnessed in the ongoing COVID-19 pandemic, tensions between states’ (positive)
ot

obligations to protect and fulfil, on the one hand, and their obligations to respect (negative),
on the other hand, are in full display. This, in turn, led to a series of human rights
suspensions and derogations, which are contingent upon national-level realities. The lack of
tn

a clear threshold with regard to restricting vs derogating freedom of movement and

assembly leads to contrasting approaches by states. As of June 2021, around thirty states
had notified international institutions of different modalities of human rights derogations in
the course of the pandemic (see Helfer [2021] fn 2). Absence of a notification to international
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institutions did not mean, however, that no extraordinary emergency powers imposing
general restrictions of human rights were arrogated (Greene [2020]).
[39] Similarly, another consideration regarding the adoption of public health measures
against COVID-19 is the need to take into account diverging contexts when tailoring them for
specific countries. In its legally non-binding guidelines for the adoption of public health
ep

measures against COVID-19, the WHO recommends states to take into account factors
such as human rights (WHO [2021]). It is a reminder of the perils of decontextualized legal
transplants, including of public health measures. Thus, engaging in comparative regional
and national law exercises becomes not just a legal issue, but is rather also a component of
Pr

a public health rationale. An ensuing question in terms of human rights is whether certain
measures deemed to be effective against COVID-19 may be adopted in one context, but not
in another.

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 [40] A central legal case study in this matter is China. Since the country was the first to
experience community transmission of the SARS-CoV-2 virus, it was also the first to adopt

d
restrictive public health measures across the population to mitigate and even suppress its
spread (Chen et al [2020] at 764-766). The medical and public health literature may deem

we
these strategies to be effective in that purpose (Prem et al [2020] at e261-e270). However,
China is not a state party to the ICCPR, leading to a series of legal inquiries related to
restrictions on the freedom of movement, assembly, and of personal liberty. Any claims on
the legality of those restrictive measures requires including contextual human rights
assessments (Villarreal [2021]). Both for a legal and a public health analysis, future research

vie
could shed light on what different approaches towards human rights mean in countries from
different regions. At the outset, it raises the question of which stringent public health
measures would be legally valid in China, but would not stand in conformity with human
rights elsewhere.
[41] Similarly, the human rights dimension of the spillover economic impact of pandemics is

re
mostly unexplored. It is likely correlated to existing critiques on how human rights have
evolved unevenly (Moyn [2018]; in favour of a more holistic approach see Bennoune [2020]
at 673). Amongst the manifold consequences of the COVID-19 pandemic, the loss of jobs
and damaged personal income led to an increased economic disenfranchisement of literally
billions of persons around the world. A plea has been made for a ‘Temporary Basic Income’
r
devised as an emergency relief (Molina and Ortiz-Juarez [2020]). But this begs the question
ee
of why, if such measures are also economically available during so-called ‘ordinary’ periods,
they are nevertheless considered only in extraordinary settings. Human rights doctrine
regarding the progressive realization of ESC rights (→ core obligations and progressive
realization) will need to put the empirical assumptions of the pre-pandemic status quo to the
p
test.

III. Conclusion
ot

[42] Besides preparing for future pandemics, addressing the issues discussed in this
contribution could shed further light for human rights law and doctrine more generally. Doing
so would help tackle a series of key questions: what difference do human rights actually
tn

make when facing pandemics? How can a rights-based perspective help in the
implementation of public health measures in different contexts? And which takeaways from
human rights in these and other emergency settings are useful for appraising their fulfilment
in ‘ordinary’ periods? The global soul-searching after the COVID-19 pandemic will be a
crossroads in the understandings of how infectious diseases and human rights are linked.
rin

The result of these debates will be useful not only for pandemic preparedness and response,
but also for facing other pressing global emergencies.
PEDRO A. VILLARREAL
ep

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 d
Cover: Imbalanced World, 1996, Veronika Dell‘Olio (photo: Miriam Aziz)

“Essential to our concept was the establishment of a connection to the work and objectives of

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the institute. In view of the diversity of the research tasks concerned, we have attempted to high-
light an overarching idea that can be understood as the institute’s mission. We see this as the
ideal of peaceful relations between peoples on the basis of an internationally validated notion of
justice…. The depicted sculpture…[symbolizes] an imbalanced world in which some peoples
are oppressed while others lay claim to dominance and power. The honeycomb form of the circu-

ie
lar disks denotes the [international] state structure. Glass parts … [represent] the individual sta-
tes .… [The division] of the figure … into two parts [can] be interpreted as the separation of the
earth into two unequal worlds. The scissors-shaped base, on the one hand, makes the gap bet-

ev
ween them clear, on the other hand, a converging movement of the disks is conceivable…. The
sculpture [aims] at what is imagined – the possibility of the rapprochement of the two worlds.”
[transl. by S. Less]

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Art in architecture, MPIL, Heidelberg

er
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Im Neuenheimer Feld 535

D-69120 Heidelberg
Tel.: +49 (0)6221 482 - 1
Fax: +49 (0)6221 482 - 288
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www.mpil.de
SSRN@mpil.de

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